Opinion
# 2012-041-096 Claim No. 117303 Motion No. M-81815 Cross-Motion No. CM-81952
12-03-2012
BONNEE PRICE-LINDEN, PH.D. v. STATE OF NEW YORK
Synopsis
Defendant is granted summary judgment dismissing claimant's breach of contract claim where claimant altered her theory of recovery in opposition to defendant's application and failed as a matter of law to raise a triable issue of fact that defendant breached any duty owed claimant. Claimant's cross-motion for summary judgment is denied as moot. Case information
UID: 2012-041-096 Claimant(s): BONNEE PRICE-LINDEN, PH.D. Claimant short name: PRICE-LINDEN Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) The caption is amended, sua sponte, to state the only : proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 117303 Motion number(s): M-81815 Cross-motion number(s): CM-81952 Judge: FRANK P. MILANO Claimant's attorney: STEWART LEE KARLIN, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Anthony Rotondi, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 3, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves for summary judgment pursuant to CPLR 3212 dismissing the claim. Claimant opposes defendant's motion and cross-moves pursuant to CPLR 3212 for an order "granting the claim."
The claim alleges, at relevant part, that claimant took the "New York State licensing examination for clinical psychologist . . . on October 26, 1984 . . . [and] was advised that she failed the examination." The claim further alleges that "on February 24, 2009, Claimant . . . was advised orally via telephone by [defendant] that a mistake had been made, that she in fact passed the licensing examination she took on October 26, 1984 and that as a result of her passing the test, she would become a licensed psychologist effective immediately." The claim asserts a single cause of action for breach of contract and concludes that "the contract between Claimant and Defendants was breached in that the test was not fairly graded and she was not timely advised of her passing the licensing examination. The Defendants also breached it [sic] duty of good faith dealing inherent in every contract."
The defendant, in its motion for summary judgment, asserts that claimant was timely notified that she failed the October 26, 1984 examination, that claimant never received a passing grade on any of the five psychology license examinations she took and that the defendant did not breach the terms of the contract as alleged in the claim. The defendant's motion further argues that the allegation of unfair grading should be dismissed because it is a challenge to an agency determination and a CPLR Article 78 proceeding is the proper forum in which to seek such relief.
Claimant opposes defendant's summary judgment motion and cross-moves for summary judgment as to defendant's liability for breach of contract.
The standard for review of these motions is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).
The Court finds that defendant has met its initial burden and made a prima facie showing of entitlement to judgment dismissing claimant's breach of contract cause of action as a matter of law by offering proof that it complied with the terms of the contract, as those terms were alleged in the claim. Defendant met its burden through the affidavit of Chad Cassels, an employee of the New York State Department of Education who "approved Claimant's licensure in 2009 and [is] fully familiar with Claimant's application file." Mr. Cassels states that claimant:
"[T]ook the licensing examination for a psychology license in October 1984, May 1985, October 1985, May 1986 and October 1986. Claimant passed Part I of the examination in 1984 but failed Part II of the examination. Ms. Price-Linden never received a passing grade for any of the above test dates because she was unable to pass Part II. As far as I know, Ms. Price-Linden was notified of her failures in the above examinations. . . The criteria for applying for a psychology license did change in 1991 when Part II of the examination would no longer be administered."
Defendant also correctly points out that the proper forum for a challenge to whether the defendant's grading of the 1984 examination was "unfair" is an Article 78 proceeding in Supreme Court (see Matter of Kutell v New York State Bd. of Law Examiners, 21 AD3d 674 [3d Dept 2005]: "[I]n a proceeding such as this, which challenges the pedagogical evaluation of test grades, judicial review is limited to the question of whether the challenged determination is arbitrary and capricious or irrational").
In opposing defendant's motion and requesting that summary judgment as to defendant's liability be granted to her, claimant has apparently abandoned the assertion in her sworn claim that "the test was not fairly graded and she was not timely advised of her passing the licensing examination." Claimant now states in her affidavit that:
"[I]n 1991, . . . the criteria for applying for a psychology license changed and Part II of the exam was invalidated. I was not informed of that Part II was invalidated which meant that I had fulfilled the requirements and became eligible to become a licensed psychologist in 1991. However, quite shockingly, I was never advised at any point that I may be eligible until I learned when inquiring about renewing my application to take the licensing examination."Claimant concludes in her affidavit that:
"I believe that the State Board for Psychology breached a fundamental part of our agreement to tell me that Part II of the examination had been invalidated and thus I had passed the examination."
Claimant's attorney succinctly describes claimant's new cause of action: "The State breached its contract with Claimant when they did not notify her of results of the examination had changed."
Defendant objects to consideration by the Court of claimant's new theory of recovery, based upon the alleged 1991 change in the criteria for issuing a psychology license, because this theory is articulated for the first time in the context of these motions. Claimant has not moved for permission to amend the claim.
The Court is not required to consider claimant's new theory of liability because "[i]t is well settled that a new theory, presented for the first time in opposition to a motion for summary judgment, cannot bar relief which is otherwise appropriate" (Scanlon v Stuyvesant Plaza, 195 AD2d 854, 855 [3d Dept 1993]; see City of Binghamton v Hawk Engineering, P.C., 85 AD3d 1417, 1418 [3d Dept 2011], lv denied 17 NY3d 713 [2011]).
Rejection of claimant's new theory of recovery is further compelled by claimant's filing and service of her note of issue and certificate of readiness for trial. The claim was certified by claimant as ready for trial on May 17, 2012. There has apparently been little or no discovery with respect to this new theory and the statement of readiness rule (see Siegel, NY Prac § 370 [5th ed]), requires a showing of unusual or unanticipated circumstances in order to reopen any pretrial disclosure device. Uniform Rules for the Court of Claims 206.12 (c) [22 NYCRR 206.12 (c)] provides as follows:
"Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings."Claimant has not shown that unusual or unanticipated circumstances arose subsequent to May 17, 2012, when she filed the note of issue/certificate of readiness.
The law is also clear that a party may not create triable issues of fact by submitting a self-serving affidavit contradicting prior sworn statements (Kaplan v DePetro, 51 AD3d 730 [2d Dept 2008]). Here, on August 21, 2009, claimant swore in her claim that "on February 24, 2009, Claimant . . . was advised orally via telephone by [defendant] that a mistake had been made, that she had in fact passed the licensing examination she took on October 26, 1984 and that as a result of her passing the test, she would become a licensed psychologist effective immediately." In opposing defendant's motion, claimant now swears that she was told (when, by whom and how are unstated) that "in 1991, . . . the criteria for applying for a psychology license changed and Part II of the exam was invalidated. I was not informed of that Part II was invalidated which meant that I had fulfilled the requirements and became eligible to become a licensed psychologist in 1991."
Tellingly, claimant does not now reassert, as asserted in her 2009 claim, that she was told by defendant that "a mistake had been made, that she had in fact passed the licensing examination she took on October 26, 1984 and that as a result of her passing the test, she would become a licensed psychologist effective immediately."
Even were the Court to ignore the above-described failings in claimant's opposition to defendant's motion, dismissal would still be required.
Defendant, in its reply papers, provides the affidavit of Kathleen Doyle, Executive Secretary for the State Board for Psychology. Ms. Doyle explains the circumstances underlying the 1991 amendment of the Regulations of the Commissioner of Education regarding the psychology license examination which eliminated Part II of the examination and which resulted in claimant becoming eligible to be licensed in 1991.
Ms. Doyle states that the "amendment eliminating Part II of the examination merely changed the requirements for licensure. It did not change any test grades or invalidate any previous examination grades."
Ms. Doyle's affidavit shows that the 1991 amendment was issued and published as required by law and that neither the amendment nor any "statute, rule, policy or regulation placed a duty on the State to notify any individual personally of the amendment."
Claimant's contention that the defendant was under a continuing and perpetual contractual obligation to notify her personally of changes in the psychology licensing requirements is unreasonable and legally unsupported and, consequently, is rejected by the Court.
Claimant has failed to raise a triable issue of fact. The defendant's motion for summary judgment dismissing the claim is granted. Claimant's cross-motion for judgment as to defendant's liability for breach of contract is denied as moot. The claim is dismissed.
December 3, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion for Summary Judgment, filed July 3, 2012;
2. Affirmation of Anthony Rotondi, dated July 2, 2012, and annexed exhibits;
3. Affidavit of Chad Cassels, sworn to June 29, 2012;
4. Claimant's Notice of Cross-Motion for Summary Judgment, filed August 6, 2012;
5. Affirmation of Stewart Lee Karlin, dated August 2, 2012, and annexed exhibits;
6. Affidavit of Bonnee Price-Linden, sworn to July 20, 2012;
7. Affirmation of Anthony Rotondi, dated August 28, 2012;
8. Affidavit of Kathleen Doyle, sworn to August 27, 2012, and annexed exhibits;
9. Affirmation of Stewart Lee Karlin, dated September 5, 2012, and annexed exhibits.